Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.

The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to
Clay.Smith@cwagweb.org or
afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf.

Should you have any issues with the links, contact
Andrea Friedman with any questions.

"The Senate voted to confirm Andrew Wheeler as administrator of the Environmental Protection Agency (EPA) in a 52-47 mostly party-line vote.

Wheeler has led the EPA in an active capacity since former Administrator Scott Pruitt resigned on the heels of ethics controversies in July. He will be the agency’s second leader under President Trump, who nominated Wheeler to take over the role of EPA administrator in early January."

Seven State Attorneys General Seek Clarification of the CWA Section 401 Process

The Attorneys General from Louisiana, Alabama, Montana, Nebraska, South Carolina, Texas and West Virginia sent a letter to EPA Administrator Wheeler expressing “support [of] an effort by EPA to maintain cooperative federalism and the rule of law to the [CWA] Section 401 process.” They state: “Instruction from EPA on the respective roles of state and federal authority within the bounds intended by the statute is needed to ensure that Section 401 is used for its intended purpose to protect water quality, to minimize its potential for misuse, and to provide predictability in permitting energy infrastructure.”

EPA announced on February 25, 2019, that it had “completed its current review of the primary (health-based) NAAQS for SOX, a group of closely related gaseous compounds that include sulfur dioxide (SO2). Of these compounds, SO2 (the indicator for the current standard) is the most prevalent in the atmosphere and the one for which there is a large body of scientific evidence on health effects. The current primary standard is set at a level of 75 parts per billion (ppb), as the 99th percentile of daily maximum 1-hour SO2 concentrations, averaged over 3 years. Based on the EPA’s review of key aspects of the currently available health effects evidence, quantitative risk and exposure information, advice from the Clean Air Scientific Advisory Committee (CASAC), and public comments, the EPA is retaining the current standard, without revision.”

"On February 27, the Environmental Protection Agency (EPA) announced the development of a Water Reuse Action Plan that will look at technological improvements, regulatory and policy analysis at all levels of government, financial incentives, performance requirements, access to water use and availability data, and public outreach and education opportunities. EPA will facilitate discussions among federal, state, and water sector stakeholders to develop a plan, and form partnerships to leverage the expertise of industry and governments to ensure the effective use of the nation’s water resources. A draft of the plan is scheduled for release and public review in September at the Annual WaterReuse Symposium in San Diego."

Congress Asked the Fed Chief About Marijuana Banking: 'It would be nice to have clarity'

CNBC

February 26, 2019

"Federal Reserve Chairman Jerome Powell said before the U.S. Senate that conflicting federal and state laws on the sale of marijuana and other cannabis products put bank supervisors in a "very difficult place."

Asked by Sen. Robert Menendez, D-N.J., about the Fed's thoughts on the cannabis space, the leader of the U.S. central bank said further regulatory guidance would be helpful for bank overseers.

Cannabis has proven a puzzling topic for both Washington and Wall Street, which is discovering a unique set of hurdles as it explores the burgeoning marijuana and hemp markets, ranging from lending restrictions to disagreeing local laws. Marijuana remains illegal on a federal level in the United States, but 10 states and the District of Columbia have allowed its use for recreational purposes. Michigan became one of the latest to OK marijuana in November."

Governor Steve Bullock and FWP Director Martha Williams filed an original proceeding in the Montana Supreme Court seeking to determine whether the State Land Board is required to approve Habitat Montana conservation easement transactions of more than 100 acres or $100,000 in value. The Attorney General and other members of the Land Board have asserted that Land Board approval was required for such transactions. The Montana Supreme Court concluded that FWP has authority to purchase Habitat Montana conservation easements once the FWP commission approves of the transactions. Land Board approval is not required by Montana law.

The Montana Supreme Court concluded that acquisition of land means something different than acquisition of a conservation easement. FWP does not acquire land itself through its acquisition of a conservation easement on private land; it acquires an interest in the land. The private landowner continues to own, pay taxes on, and maintain his or her right to sell the property. The Montana Supreme Court held that the statute only requires FWP to seek Land Board approval for acquisition of land itself, not acquisition of conservation easements.

In Show of Bipartisanship, House Approves a Sweeping Bill on Land Conservation

The New York Times

February 26, 2019

"The House of Representatives on Tuesday passed its first significant public lands conservation bill in years, designating more than one million acres of wilderness for environmental protection and permanently reauthorizing a federal program to pay for conservation measures.

The House passage of the bill, on a vote of 363-62, sends the measure, which was passed by the Senate this month, to the desk of President Trump. The vote Tuesday offered a rare moment of bipartisanship in a divided chamber and a rare victory for environmentalists at a time when the Trump administration is working aggressively to strip away protections on public lands and open them to mining and drilling."

Proposed Regulations on the Listing of Properties in the National Register of Historic Places - Request For Public Comment

"As part of the National Park Service Centennial Act, signed it into law on December 16, 2016, Congress amended the National Historic Preservation Act (NHPA) by adding a new paragraph governing the nomination by federal agencies of properties to the National Register. This proposed rule would revise existing regulations so that they are consistent with the 2016 amendments that establish an exclusive process for the nomination of properties directly by Federal agencies.

The new paragraph sets forth a specific process for Federal agencies to directly submit nominations of properties under the jurisdiction or control of a Federal agency. This new paragraph allows the Secretary of the Interior to accept a nomination directly from a Federal agency for inclusion of property in the National Register, but only if six preconditions are satisfied.

The proposed changes would give private property owners more control over whether their property is listed in the National Register as part of a historic district.

In addition, the changes would also extend the timeline for the Keeper to respond to appeals and make minor changes to regulations that no longer reflect the current practice of how properties are listed in the National Register."

Public Comment

The public comment period on these changes is from March 1 to April 30, 2019,

Comments must be submitted through official channels during the 60-day comment period:

Following the public comment period, the NPS will review all comments received and conduct an analysis. The NPS will then determine to either proceed with the proposal and prepare a final rule, issue a new modified proposal (with public comment), or withdraw the proposal.

The
American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.

CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.